Dunton v. Westchester Fire Ins. Co.

• Decision Date: 15 September 1908
• Citation: 104 Me. 372,71 A. 1037
• Parties: DUNTON v. WESTCHESTER FIRE INS. CO.
• Court: Maine Supreme Court

71 A. 1037

104 Me. 372

DUNTON

v. WESTCHESTER FIRE INS. CO.

Supreme Judicial Court of Maine.

Sept. 15, 1908.

(Official.)

Exceptions from Supreme Judicial Court, Somerset County.

Action by Elmer H. Dunton against the Westchester Fire Insurance Company. Verdiet for plaintiff, and defendant excepts. Exceptions overruled.

Action on two fire insurance policies issued by the defendant in the standard form prescribed by Rev. St. c. 49, § 4, par. 7. The record does not disclose the defendant's plea. Tried at the March term, 1908, Supreme Judicial Court, Somerset County. At the conclusion of the testimony the presiding justice ordered a verdict for the plaintiff for $1,240.71. To this order the defendant excepted and also excepted to certain other rulings made during the trial.

The case is stated in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, PEABODY, and BIRD, JJ.

Merrill & Merrill, for plaintiff.

Butler & Butler and Frederick W. Brown, for defendant.

WHITEHOUSE, J. This is an action on two fire insurance policies issued by the defendant corporation in the standard form prescribed by Rev. St. Me. c. 49, § 4, par. 7.

Among the provisions contained in this form of policy are the following stipulations respecting the loss or damage and the method of ascertaining and estimating such damage by arbitration, viz.:

"The amount of said loss or damage to be estimated according to the actual value of the insured property at the time when such loss or damage happens but not to include loss or damage caused by explosions," etc.

"In case of any loss or damage under this policy, a statement in writing, signed and sworn to by the insured, shall be within a reasonable time rendered to the company, setting forth the value of the property insured, the interest of the insured therein, all other insurance thereon, in detail," etc.

"In case of any loss or damage, the company within sixty days after the assured shall have submitted a statement as provided in the preceding clause, shall either pay the amount for which it shall be liable, which amount, if not agreed upon, shall be ascertained by award of referees as hereinafter provided, or replace the property with other of the same kind or goodness," etc.

"If there shall be any other insurance on the property, whether prior or subsequent, the insured shall recover on this policy no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon.

"In case of loss under this policy, and a failure of the parties to agree as to the amount of loss, it is mutually agreed that the amount of such loss shall be referred to three disinterested men, the company and the insured each choosing one out of the three persons to be named by the other, and the third being selected by the two so chosen; the award in writing by a majority of the referees shall be conclusive and final upon the parties as to the amount of loss and damage, and such reference, unless waived by the parties, shall be a condition precedent to any right of action in law or equity to recover for such loss."

It is admitted by the defendant that three referees were seasonably chosen in all respects in accordance with these stipulations in the policy and the statutes of the state providing for "a reference of the question of amount to three disinterested men * * * in case of a failure of the parties to agree as to the amount of loss." Thereupon the defendant contended before the board of referees, thus legally constituted, that at the time of the fire the plaintiff had no title to the property insured, and offered evidence to prove that prior to that time the plaintiff had no title to the propery insured, and had sold the property to a third party. The referees excluded this evidence and ruled that they had no jurisdiction of the question of the plaintiff's title or insurable interest, and that the only question submitted to them was the amount of damage done by the fire.

The referees accordingly proceeded to take evidence upon the question of the amount of damage done by fire to the property described in the policies, and made their award determining the amount of damage on the merchandise insured to be $0,280, and on the tools and machinery $350. The defendant declined to recognize this award as a compliance with the requirements of the policy and denied its validity on the ground that the referees had refused to hear evidence upon and determine the question of the plaintiff's title to the property insured. The plaintiff thereupon commenced this action upon the policies, and at the trial the court received evidence, subject to the defendant's objection, to prove title in the plaintiff to the property insured, and also admitted the award of the referees as to the amount of damage done to the property by the fire.

The defendant requested the court to rule that upon this evidence the plaintiff was not entitled to recover. The court refused to rule as requested and ordered a verdict for the plaintiff for $1,246.71. The case comes to the law court on exceptions to these rulings of the presiding justice.

The only question thus raised by the exceptions and argued by counsel is whether the stipulation in the Maine Standard policy in regard to arbitration authorizes and requires the referees to take jurisdiction of one of the principal questions involved in the plaintiff's right to recover, and determine his title to the property insured, as well as the amount of the damage done to the property, or whether it contemplates only an appraisal by the referees of the value of the property described in the policy and an estimate of the damage done by the fire to that property, leaving the question of the plaintiffs title and the general question of the defendant's liability to be judicially determined in the courts of law.

When this question is examined in the light of the uniform current of judicial opinion respecting such stipulations for arbitration in contracts of insurance made prior to the adoption of the Maine Standard policy, and considered with reference to the provisions of the standard policy itself specially involved in the inquiry and the practical operation of the rule contended for by the defendant, the conclusion is irresistible that the ruling of the presiding justice was correct, and that the exceptions must be overruled.

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